Land and Environment Court New South Wales Medium Neutral Citation: Steel v Liverpool City Council [2019] NSWLEC 1049 Hearing dates: 5 – 7 February 2019 Date of orders: 12 February 2019 Decision date: 12 February 2019 Jurisdiction: Class 1 Before: O'Neill C Decision: (1) The appeal is dismissed. (2) Development Application No. 1038/2016 for the demolition of an existing dwelling and the construction of a two storey boarding house containing 10 boarding rooms for a maximum of 19 lodgers, at 24 Madang Street, Holsworthy, is refused. (3) The exhibits, other than Exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: boarding house; compatibility with the character of the local area; impact on neighbours' amenity and internal amenity. Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Liverpool Local Environmental Plan 2008 Texts Cited: Liverpool City Council Development Control Plan 2008 Category: Principal judgment Parties: Richard James Steel (Applicant) Liverpool City Council (Respondent) Representation: Counsel: J Reid (Applicant) R O'Gorman Hughes (Respondent) Solicitors: Thompson Geer Lawyers (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2017/386561 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 1038/2016 for the demolition of an existing dwelling and the construction of a two storey boarding house (the proposal) at 24 Madang Street, Holsworthy (the site) by Liverpool City Council (the Council). 2. The appeal was subject to conciliation on 20 June 2018, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference, it was terminated pursuant to s 34(4) of the LEC Act. 3. Leave was granted by the Court on 4 July 2018 and again on 7 December 2018 for the applicant to amend the development application by relying on amended plans. Leave was unopposed and granted by the Court at the commencement of the hearing for the applicant to amend the application by relying on amended plans, landscape plans and a Plan of Management. Leave was unopposed and granted by the Court on the final day of the hearing for the applicant to amend the application by relying on further amended plans (Ex A). Amendment 31 to the Liverpool City Council Development Control Plan 2008 1. Leave was granted to the Council at the commencement of the hearing to amend the Statement of Facts and Contentions to add particulars to some contentions citing the objectives and controls of the new Pt 3.9 of the Liverpool City Council Development Control Plan 2008 (DCP 2008), which was recently added to DCP 2008 as Amendment 31. The Council was granted leave to rely on the amended Statement of Facts and Contentions because a development control plan relevant to the development the subject of the development application is a mandatory consideration, pursuant to s 4.15(1)(a)(iii) of the EPA Actl in evaluating a development application whether or not those provisions are cited in the particulars of the contentions raised by the Council. 2. The applicant submits that Pt 3.9 of DCP 2008 was drafted in response to this application and queried whether Amendment 31 was lawfully made in accordance with the requirements for amending a DCP. The Council submits that this latest amendment to DCP 2008 was lawfully made pursuant to cl 21 of the Environmental Planning and Assessment Regulation 2000. I accept the Council's submission on the basis of the evidence before me in Exhibit 8 and I note that the determination of such an allegation as made by the applicant regarding Amendment 31 is not a matter for this forum. Issues 1. The Council's contentions can be summarised as: * The proposal is incompatible with the local character of the area, as the local character consists of low density, detached residential dwellings located towards the front of each allotment with private open space at the rear. The proposal is inconsistent with the zone objectives. * The proposal is likely to result in amenity impacts on neighbouring dwellings because a number of boarding rooms have front doors accessed externally adjacent to shared boundaries and there is no internal access to the majority of boarding rooms. * The site planning of the proposal is unacceptable because it is inconsistent with the predominant pattern of landscaping in the local area. * The proposal fails to provide adequate internal amenity and a sense of place for the future residents. 1. The parties disagreed on how the agreed restriction on hours of use of the common open space should be imposed on any consent. The Council seeks a condition of consent articulating the agreed hours so that any future changes to those hours require consent to a modification application. The applicant submits that it is sufficient for the agreed hours to be included in the Plan of Management and a condition imposed on the consent that the Plan of Management cannot be altered without the written consent of the Council. 2. The Council's contention regarding the inadequate access of the proposal to a bus stop was not pressed. The Council's contentions regarding the unsatisfactory design of the accessible boarding room, the unsatisfactory access on and around the site, the lack of accessible parking, the unsatisfactory fencing and the unsatisfactory room sizes were resolved to the Council's satisfaction by the agreement of the experts and amendments made to the proposal. The site and its context 1. The site is located on the corner of Madang and Markham Streets and has an area of 611.5m2. 2. There is a single detached dwelling on the adjoining property to the south, 20 Markham Street and a single detached dwelling on the adjoining property to the east, 22 Madang Street. The northern elevation of the dwelling at 20 Markham Street includes windows to a bedroom, bathroom and kitchen and a side entry to the laundry. There is a swimming pool at the rear of 20 Markham Street. 3. The locality consists of detached dwellings and some contemporary attached dwelling developments. The proposal 1. The proposal is to demolish the existing dwelling on the site and construct a two storey boarding house to accommodate a maximum of 19 lodgers. 2. The proposal consists of ten boarding rooms, of which seven are over two levels with an internal staircase; the accessible room is on the ground floor and two boarding rooms are on the first floor. Nine of the rooms can accommodate two people. Each room has a kitchenette and an ensuite bathroom. The two storey rooms have direct access on the ground floor to an external terrace and one upstairs room has a balcony. Seven of the rooms are only able to be accessed via an external door. The upper level of the proposal overhangs the lower level on the northern and southern elevations and there is a blade wall separating each two storey boarding room extending perpendicular to the façade and up to the gutter line. 3. The two storey boarding rooms have a living area with a kitchenette on the ground floor and a private stair access to a bedroom and bathroom on the upper level. The planning experts agreed that these two storey boarding rooms have an internal area of around 24m2, consistent with cl 30(1)(b) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). 4. Other accommodation on the site includes a communal room on the ground floor with direct access to a small external terrace, a common open space area available until 6pm each day, a double garage, a service bay for one car, two motorbike spaces, bin storage and drying area and landscaping. Planning framework 1. The application is made pursuant to Div 3 of SEPP ARH as the site is zoned R3 Medium Density Residential under the Liverpool Local Environmental Plan 2008 (LEP 2008) (Land zoning map - sheet LZN_015 of LEP 2008) and Div 3 applies to the site pursuant to cl 26(3) of SEPP ARH. Boarding houses are a permissible use in the R3 zone. 2. Pursuant to cl 29 of SEPP ARH, a consent authority must not refuse consent to development to which Div 3 of SEPP ARH applies on the grounds of density or scale if the density or scale of the buildings when expressed as a floor space ratio (FSR) are not more than the existing maximum floor space ratio for any form of residential accommodation permitted on the land. Clause 7.33 of LEP 2008, which applies to land zoned R3 at subcl (1)(a), permits a dwelling house on land to which the clause applies to have a floor space ratio that does not exceed 0.6:1. The applicant submits that the FSR of the proposal is 0.54:1. 3. The proposal achieves the relevant standards for boarding houses, at cl 30 of SEPP ARH, as follows: Standards for boarding houses (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following: (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, (b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres, (c) no boarding room will be occupied by more than 2 adult lodgers, (d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. 1. Clause 30A of SEPP ARH is in the following terms: Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 1. The zone objectives for the R3 zone in LEP 2008 relevantly include the following: ... • To ensure that a high level of residential amenity is achieved and maintained. 1. The maximum height of the proposal is lower than the height of buildings development standard in LEP 2008 of 8.5m (Height of Buildings map HOB_015 of LEP 2008). 2. Part 3.9 of DCP 2008 is titled Boarding House Development. Pt 3.6 of DCP 2008 must be applied to boarding house development in the R3 zone, at 3.9(1)(3)(iii) of DCP 2008. Pt 3.6 of DCP 2008 includes, at "3. Site Planning", objectives (a) and (c) and control (1), as follows: "Objectives a) To ensure that Multi Dwelling Housing are sensitive to site attributes, such as streetscape character, natural landform, drainage, existing vegetation, land ... capability, slope, solar access and if relevant, heritage items. c) To achieve a high standard of amenity for future residents and neighbours. ... Controls 1. Site layout should consider, and as far as possible minimise overshadowing, acoustic and visual intrusion on neighbouring and on site dwellings." 1. Part 3.6 of DCP 2008 includes, at "5. Setbacks", controls for the front setback of 4.5m and the secondary boundary of 2.5m. 2. Part 3.9 of DCP 2008 includes, at "3. Building Character", a requirement for a character statement to be submitted with all applications for boarding house development with reference to the list of relevant elements at Appendix 1. The Council submits that this requirement is waived because of the late amendment of the Statement of Facts and Contentions, however, the elements at Appendix 1 should be considered in a merit assessment of the proposal. The applicant submits that the elements at Appendix 1 include a reference to the desired future character in "desired future building type" when identifying the predominant building typology in the locality. 3. Part 3.9 of DCP 2008 includes, at "5. External Building Design", a control that all boarding rooms must only be accessed from within the building. 4. Part 3.9 of DCP 2008 includes, at "6. Internal Building Design", the following control to limit the number of bedrooms: "1. Boarding houses shall be limited to a maximum number of bedrooms using the formula below (rounded to the nearest whole number). Any floor space ratio (FSR) over 1:1 shall be rounded down to 1:1: No. of rooms = Site Area (sqm) X FSR (no more than 1:1)" 45 1. Part 3.9 of DCP 2008 also includes, at 6, control number 3 requiring an indoor communal living room to be provided at a rate of 15m2 for the first five lodgers (or part thereof) and 1m2 for each additional lodger. For a maximum 19 lodgers as proposed by the application, a communal living room would need to be 29m2 to satisfy this control. The common room is 17.25m2. 2. Part 3.9 of DCP 2008 includes the following control which is achieved by the proposal following the parties' agreement to a condition to add a highlight window in the eastern elevation on the ground floor or boarding room 5: "7. At least 70% of the rooms shall receive a minimum of 3 hours direct sunlight between 9am and 3pm on 21 June." Public submissions 1. Three resident objectors provided evidence onsite. Their concerns can be summarised as: * The proposal is inappropriate for the residential area as it is not close to public transport or a retail and commercial centre. * The proposal will have amenity impacts on neighbours due to the external entries to rooms and the number of lodgers proposed. * The southern neighbour was unaware of the proposal having bought her property six months ago. She is concerned that the proposal will impact on her amenity. Expert evidence 1. The applicant relied on the expert evidence of Ms Schandel Fortu (planning), Mr Rob Frew (landscaping) and Mr Richard Seidman (accessibility). The Council relied on the expert evidence of Mr Glenn Apps (planning), Ms Narelle Sonter (landscaping) and Mr Mark Relf (accessibility). The accessibility experts were not required to give oral evidence. Consideration Compatibility with the local area 1. The planning experts broadly agreed that the local area can be taken as the block on which the site is situated and the properties on the opposite side of the road around that block. Ms Fortu interpreted the local area to be made up of a number of layers, including the area that can be viewed from the site, the block including the properties opposite the block as defined by Mr Apps (Ex 2, par 33) and the wider area zoned R3 Medium Density Residential. I accept the broad agreement of the experts as to the definition of the local area being the local area defined by Mr Apps and shown in Exhibit 2, par 33. I accept that it is appropriate to also consider the future character of the R3 zone and this was agreed by the planning experts (Ex 3, par 47), where they state their agreement as, "the suite of controls for multi dwelling housing are appropriate to consider as they establish the anticipated future character of development in the zone". 2. The planning experts agreed that the local area has an existing low density residential character. 3. The future character of the R3 zone is given by the planning regime and this is a relevant consideration in determining the "character" of the local area under cl 30A of SEPP ARH. Clause 30A does not confine "character" to the existing character. 4. The R3 Medium Density Residential zone that includes the site has a height of buildings development standard of 8.5m and a floor space ratio (FSR) development standard maximum of 0.55:1 (for multi dwelling development pursuant to cl 4.4(2A) of LEP 2008) and 0.6:1 (for dwelling houses pursuant to cl 7.33 of LEP 2008) and includes multi-dwelling housing as a permissible use, but not residential flat buildings. The future character of this R3 zone (considering the density and height controls and permissible uses) is not going to be dramatically different to the existing low density residential character, because the overall density of built form given by the development standards is akin to the existing low density residential character, although additional building forms and reduced setbacks will have some impact on the existing low density residential character of the local area. 5. The planning experts disagreed on whether the design of the proposal is compatible with the character of the local area. According to Mr Apps, the design does not provide articulation and is repetitive, such that the proposal is "akin to a motel and ultimately, the design does not sit well within the context of the neighbourhood" (Ex 2, par 37). In his view, the proposal "would be more in keeping with the anticipated character of the area if it did not present as a series of individual units and instead presented more as a single dwelling" (Ex 2, par 38). 6. In considering whether the design of the development is compatible with the character of the local area, I am not satisfied that the design of the proposal is sufficiently skilful to achieve a compatible development. I accept Mr Apps' criticisms of the proposal, however, it is my view that the proposal need not mimic a detached dwelling to achieve compatibility, but rather it should, in form and articulation, blend with the context and respond appropriately to the future character of the local area. 7. The design of the western, northern and eastern façades of the proposal, each visible from the public domain as the site is a corner allotment, is confused because each façade has a completely different treatment. 8. The western façade fronting Markham Street mimics a contemporary single detached dwelling and adopts the motifs and general form of nearby project houses by using the celebrated raised entry porch and articulated double garage. The upstairs balcony creates an awkward and unresolved geometry with the roof over the single storey portion below. 9. The northern and southern façades have external blade walls perpendicular to the façade to denote the division between each two storey room as well as overhanging upper floors and these features effectively extend the building envelope to the gutter line, without contributing to the FSR calculation, to create a building bulk that is larger than the likely bulk that will be achieved by a multi dwelling development with a FSR of 0.55:1 or a dwelling with a FSR of 0.6:1. The use of the vertical blades compartmentalises the façade, which gives the proposal an institutional appearance on the northern façade (prompting Mr Apps' motel analogy) and overemphasises the narrow proportions of each boarding room. This articulation of the northern façade fronting Madang Street is not evocative of a multi dwelling residential development, because a multi dwelling residential development has much more generous proportions. 10. The eastern façade of the proposal presents as an 11m long and 5.5m high, unarticulated bland wall when viewed from the east along Madang Street, and would be clearly visible from Madang Street across the front setback of 22 Madang Street. I do not accept that the 1.2m high fence along the shared boundary with 22 Madang Street and 4.5m from the eastern façade covered in a vine with an adjacent narrow landscaped strip will ameliorate or soften the view across the service bay of the high, unarticulated bland wall of the eastern façade. 11. The spatial planning of the proposal is unresponsive to the geometry of the site, which creates a sense of small "left over" utility and landscaped areas around the building. This, combined with the minimum setbacks to Markham Street and Madang Street, results in a proposal that is contrary to the established low density residential character of the local area where there is generally a figure/ground relationship that provides a positive or meaningful landscaped or external area that is not simply the left over space between the building and the boundary. 12. The applicant submits that the layout of the proposal, including the individual external entries to boarding rooms from an accessible pathway that circles the building, is of similar character to the multi dwelling layout template shown at Figure 2 in Pt 3.6 of DCP 2008. The multi dwelling layout depicted in Figure 2 shows a central access T shaped road with attached dwellings in three separate buildings on each side of the road. Each dwelling fronts the road and has an area of private open space at the rear of the dwelling, presumably adjacent to a shared side boundary with neighbouring properties. I do not accept that the proposal has anything in common with the indicative layout for multi dwelling residential development in Figure 2. The two have a very different scale and the indicative layout for setbacks for multi dwelling residential development results in the private open space for only a few dwellings abutting the shared boundary between an adjoining suburban allotment and the multi dwelling residential development. In contrast, the proposal has an access pathway close to the shared boundary with 20 Markham Street as the only option for entry into two boarding rooms. I am not convinced that the proposal has managed to adopt the character or the amenity of a multi dwelling residential development. Internal amenity, site planning and impacts on the amenity of neighbouring properties 1. The applicant submits that the design of the proposal is based on a "dignity model", where the boarding room is divided into two rooms, a living area and kitchenette on the ground floor and a bedroom and ensuite bathroom accessed via an internal stair on the upper level. The external entry to most of the boarding rooms allows the lodger/s to come and go without necessarily having to engage with their fellow lodgers in the boarding house. The applicant submits that the boarding rooms are just under the maximum area of 25m2, making each boarding room as generous as it can be under the terms of SEPP ARH. 2. I prefer the evidence and submission of the Council that it is impractical to only have external access to seven boarding rooms and for those rooms to only have external access to the common room. The lodgers in the seven boarding rooms accessed externally would have to go outside and use the access path around the building to get to the common room and to return to their boarding rooms, resulting in the potential for unnecessary amenity impacts on the adjoining neighbours and other lodgers as well as being inconvenient to the lodgers. The lodgers are forced to use the access path around the building and walk past the only door and windows of other boarding rooms that offer an outlook and there is no landscaped buffer between the pathway and the outdoor area of each boarding room, which would result in unnecessary privacy impacts on lodgers. 3. The proposal has a celebrated entry porch and front door on the western façade that signals the building's entry in the same way that the front door is denoted in a detached residential dwelling, yet this entry only accesses three boarding rooms and the common room, making it an incongruous and deceptive feature when most of the boarding rooms cannot be accessed via the front door. The circulation and access to individual boarding rooms will not be easily interpreted by the layout. This may be overcome by signage, but good architectural design provides the cues that make the building and site layout readable. 4. The internal amenity of the two storey boarding rooms is compromised by their spatial planning. The living area on the ground floor is approximately 9m2 (excluding the kitchen joinery) and it is dissected diagonally by the circulation between the front door and the stair, with a washing machine and sink in the only free corner of the room. This layout makes it challenging to furnish the small room. The stair occupies a portion of the area of the room and splitting the total area over two levels is a less efficient use of a small space. The upstairs bedrooms have only highlight windows and a window which looks onto a wall 610mm from the window. Dividing the boarding rooms over two levels requires skilful and thoughtful spatial planning to achieve a good quality, practical outcome within the maximum gross floor area of 25m2 and the proposal has not achieved a design quality that ensures a reasonable level of residential amenity for the future lodgers. 5. SEPP ARH requires at least one communal living room for a boarding house with 5 or more boarding rooms. DCP 2008 Pt 3.9(6)(3) requires an indoor communal living room at a rate of 15m2 for the first 5 lodgers and 1m2 for each additional lodger. These requirements are not inconsistent because both are able to be satisfied. DCP 2008 requires a communal living room for 19 lodgers of 29m2 and the proposed communal room is 17.25m2. This issue alone is not determinative in my view, because the communal room otherwise has good amenity; it has an ideal orientation to the north, it overlooks a landscaped area and Madang Street so that any activity in the room or on the terrace will not impact on the amenity of adjoining neighbours and it has a partially covered small outdoor terrace area which creates a secondary communal space and extends the area of the communal room. A more generous communal room able to be accessed internally would, however, be a better outcome, particularly as the common open space in the south-eastern corner is not available after 6pm. 6. The parties agreed to the recommendation of the acoustic consultant (Ex D) that the common open space in the south-eastern corner of the site (adjacent to the dwelling at 22 Madang Street and the backyard of 20 Markham Street) is to be restricted in hours of use so that the outdoor space cannot be occupied after 6pm on any evening. While this restriction deals with the potential for amenity impacts on the neighbours, it is an undesirable imposition on the amenity of the future lodgers of the proposal. Conclusion 1. The design of the development is not compatible with the character of the local area because the proposal does not blend with the existing low density residential character of the local area, nor is it evocative of a multi dwelling residential development. I am not satisfied that the design of the proposal is sufficiently skilful to achieve a compatible development. 2. The proposal fails to ensure that a high level of residential amenity is achieved and maintained for the future lodgers. The external access to the majority of boarding rooms and circulation around the building is impractical and inconvenient and results in unnecessary privacy impacts on the future lodgers and increases the risk of amenity impacts on the adjoining neighbours. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 1038/2016 for the demolition of an existing dwelling and the construction of a two storey boarding house containing 10 boarding rooms for a maximum of 19 lodgers, at 24 Madang Street, Holsworthy, is refused. 3. The exhibits, other than Exhibits 1 and A, are returned. ____________ Susan O'Neill Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2019